11th Circuit Splits From Ninth Circuit on Text Message-Based TCPA Claims
In Salcedo v. Hanna, the U.S. Court of Appeals for the 11th Circuit held that a TCPA plaintiff lacked standing to pursue a claim based on the alleged receipt of a single, unsolicited text message.
The case concerned a text message that plaintiff John Salcedo allegedly received from his former attorney Alex Hanna advertising a discount on legal services. Salcedo claimed he had standing because receiving the text message caused him to waste time, made him and his cell phone “unavailable for otherwise legitimate pursuits,” and “resulted in an invasion of [his] privacy and right to enjoy the full utility of his cellular device.” The 11th Circuit acknowledged that these allegations “facially appear to state a cause of action under the TCPA” but held that they did “not support [a] finding [of a] concrete injury.” In reaching this conclusion, the court followed Spokeo’s instructions to look to history and the judgment of Congress and concluded that Salcedo’s alleged harms—which it characterized as “a brief, inconsequential annoyance”—fell short of the harms identified by Congress when it enacted the TCPA and differed in both degree and kind from the harms recognized at common law.
In addressing the judgment of Congress, the court found it significant that the alleged violation stemmed from an FCC regulation, rather than the text of the statute. It noted that the TCPA—despite being amended several times since its enactment—says nothing regarding the “harms from telemarketing via text message” and emphasized that “congressional silence is a poor basis for extending federal jurisdiction to new types of harm.” The court reasoned that deference to the FCC’s interpretation “is not obviously relevant” based on the Supreme Court’s specific instruction in Spokeo “to consider the judgment of Congress.” This, it noted, is particularly true in the area of “emerging technologies” such as text messages, where Congress is “best positioned to assess and articulate new harms” that may arise. Of Congress, the court also said “the silence of that political branch” should be “take[n] seriously.”
The court looked to the TCPA’s legislative history including Congress’s legislative findings about telemarketing, which it found evidenced Congress’s concern “for privacy within the sanctity of the home.” The court found this concern does “not necessarily apply to text messaging” to cell phones, which “by nature of their portability and their ability to be silenced … may involve less of an intrusion than calls to a home phone.” It found further support for this interpretation in Congress’s 1992 amendment allowing the FCC to exempt free-to-receive cellular calls, which, although never implemented by the FCC, “suggests less congressional concern about calls to cell phones.”
The court found the TCPA’s provisions governing “junk faxes” to be similarly inapposite because they were based on Congress’s concern with the time the faxes took occupying the recipient’s fax machine, which left it “unavailable for legitimate business messages while processing and printing the junk fax.” Because it viewed this concern to have “little application to the instantaneous receipt of a text message,” the court distinguished Salcedo’s allegations from the allegations in previous 11th Circuit cases that found a plaintiff had standing to sue over a single violation of the TCPA. The court also found Salcedo’s general allegation “that some text messages cause recipients to incur costs to their wireless service providers” did not support a finding of concrete harm because he had not specifically alleged that Hanna’s text message cost him any money.
The court also rejected Salcedo’s argument that the alleged harms resulting from his TCPA claim were closely related to those actionable under the torts of invasion of privacy, nuisance, conversion, and trespass to chattel and found the allegations differed in both kind and degree from those actionable at common law.
The court acknowledged that the Ninth Circuit reached the opposite conclusion in Van Patten v. Vertical Fitness Group, LLC, which held that the receipt of two unsolicited text messages constituted an injury in fact. It found the Ninth Circuit’s holding—based on its conclusion that “Congress identified unsolicited contact as a concrete harm” of the type that “have long been heard by American courts … to remedy … invasions of privacy, intrusion upon seclusion, and nuisance”—to be unpersuasive, and described the Ninth Circuit’s conclusion regarding the judgment of Congress to be a “broad overgeneralization” that was refuted by its analysis, which focused specifically on text messaging. It similarly rejected “[t]he Ninth Circuit’s one-sentence review of history” and noted that its “more thorough … examination of those torts reveal[ed] significant differences in the kind and degree of harm that they contemplate providing redress for.”
The 11th Circuit’s reasoning appears to question the viability of text message- and cell phone-based TCPA claims. It characterized Salcedo’s allegations as “a brief, inconsequential annoyance” with “[t]he chirp, buzz, or blink of a cell phone … more akin to walking down a busy sidewalk and having a flyer briefly waived in one's face” than the tangible harms identified by Congress—such as “having the domestic peace shattered by the ringing of the telephone.” Nonetheless, the court was careful to limit its holding to the facts before it, with Judge Pryor writing in concurrence “to emphasize [her] understanding that the majority's holding is narrow” and limited to “the allegations in [the] complaint … [which] leaves unaddressed whether a plaintiff who alleged that he had received multiple unwanted and unsolicited text messages may have standing to sue under the TCPA.” It is unclear what, if any, broader impact the decision will have.
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